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Ken Felter Co-Authors Article Examining Admissibility of Sampling Evidence to Prove Individual Damages in Class Actions

Practices: Litigation

Retired litigation partner Ken Felter (Boston) has co-authored an article in the Boston College Law Review entitled “The Admissibility of Sampling Evidence to Prove Individual Damages in Class Actions” (59 B.C.L. Rev. 655 (2018)).  

The article begins with a discussion of how a 2016 Supreme Court decision has revived the use of sampling and other statistical evidence in class actions to prove classwide liability and, occasionally, aggregate damages; but points out that federal courts still routinely deny class certification because the calculations of class members’ individual damages defeat the predominance prerequisite of Fed. R. Civ. P. 23(b)(3). 

Mr. Felter and his co-author, Hillel Bavli, a Fellow at the Harvard Institute for Quantitative Social Science, combine legal and statistical analyses and propose a novel solution to this dilemma that adheres to the Supreme Court’s decision while satisfying Daubert , the standards of FRE 702, and the prerequisites of Rule 23(b)(3) classes. They develop a method and derive a threshold to determine when class damages claims are sufficiently homogenous to justify admissibility of sampling evidence to prove individual damages, and also recommend several procedures to evaluate when the threshold is satisfied. 

A PDF of the article is available here.

Since he “retired”, Mr. Felter has been leading a tutorial on law and economics in the Economics Department at Harvard College, teaching in the Trial Advocacy Workshop at Harvard Law School, teaching a seminar on law and behavioral economics at Boston College, and serving as President of Greater Boston Legal Services.    

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